County recorder's 'unrecording' of documents is questioned

Monday

Apr 14, 2014 at 12:01 AMApr 14, 2014 at 3:58 PM

You've signed a mound of papers at the closing for your new home. Money and keys changed hands. The deed and mortgage were filed that day with the Franklin County recorder's office. There's no doubt who has claim to the property. But some title agents and attorneys said that assurance could be at risk because Recorder Terry J. Brown is willing to delete documents from his office's searchable index. Title people call it "unrecording."

Earl Rinehart, The Columbus Dispatch

You’ve signed a mound of papers at the closing for your new home. Money and keys changed hands. The deed and mortgage were filed that day with the Franklin County recorder’s office. There’s no doubt who has claim to the property.

But some title agents and attorneys said that assurance could be at risk because Recorder Terry J. Brown is willing to delete documents from his office’s searchable index. Title people call it “ unrecording.”

Brown calls it “rejecting” a document, and he said he usually has deleted one from the index only in cases of “fatal errors” — a missing signature, notary stamp or legal description. The concerned parties are notified that a correction is needed, and the document is rerecorded when fixed, he said.

But because of complaints from title agents, Brown said he has asked the county prosecutor’s office to research the question and advise him on when it is proper to remove a document from the index. The prosecutor’s office said it should have an answer for him this week.

“It’s not that big of an issue,” Brown said. “I think it’s a matter of people not knowing how the office operates on the other side of the counter.”

For title people, once they leave that counter after paying the fees and having an “instrument number” assigned, the document is an official record that should not be deleted, title attorney Dow T. Voelker of Grandview Heights said.

“I’ve never known a document to be unrecorded,” Voelker said. “I’ve been doing this for 30 years, through six different recorders.”

The original recording and “instrument number” are inviolate, one title agent said. If the document is removed, someone could file a lien before the error is resolved. In that case, the lien would have priority over the deed or mortgage, jeopardizing the sale, said Dan Hritz of Executive Real Estate Services.

“Our point is, once you accept it and give it a number, it needs to stay a record, whether it’s valid or not,” Voelker said.

Brown said that problems are often spotted during the quality-assurance phase, which follows the counter recording and data processing on the same day. Notifying parties and solving the problem often can be accomplished in a matter of hours without deleting the document.

However, in one case, a title company took two months to return a mortgage that had been notarized without the buyer’s signature — a fatal flaw — delaying its rerecording.

But Voelker said the original instrument number and document should remain on the index. “It’s better to let the mistake go through and fix it down the line,” he said. “There’s case law that says that’s a valid mortgage, that that property can be identified.”

Title agents said they haven’t heard of anyone losing money or property because a document has been unrecorded.

Homeowners might receive a foreclosure notice because of an unpaid lien owed by the seller, for which the buyer should contact the title-insurance underwriter, Voelker said. “From the regular homeowner’s perspective, hopefully, it’s just a scare.”

The real loser would be the underwriters, who would be responsible for the cost of litigation, said Daphne Hawk, a Republican whom Democrat Brown unseated as recorder in 2012. “It’s ultimately they who will take the biggest hit.”

Hawk, a real-estate agent who was recorder for two years, said deleting a document from the index “breaks the chain of title. You’re fudging history.”

Hawk said the policy during her term and that of the previous recorder of 10 years, Republican Robert G. Montgomery, was to not unrecord documents. Montgomery, now the county Probate Court judge, declined to comment because he might preside over cases involving the recorder, his office said.

Several of Brown’s employees backed their boss, including Kim Johnson, a quality-assurance clerk who said in an email that if there is an error on the document, it “is deleted and given back or mailed back to the customer with explanation why it was rejected.” Johnson noted that she’s been with the recorder’s officer for 18 years.

Wayne Coates, the Hamilton County recorder and president of the Ohio Recorders’ Association, said his office does not unrecord a document. It will be recorded and the party notified of an error or omission.

“There may be a rerecording,” Coates said, acknowledging that the process might be different in Franklin County.

erinehart@dispatch.com

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